Back in February, Milwaukee County adopted an ordinance requiring all virtual and location-based augmented reality games to apply for permits to do virtual business in Milwaukee County Parks. The ordinance was inspired by last summer’s Pokemon Go/Lake Park controversy, which saw thousands of players flocking to, and causing damage to, the East Side park. “Permits shall be required before any company may introduce a location-based augmented reality game into the Parks, effective January 1, 2017,” read the ordinance in part.
Now, one of those location-based augmented reality game companies is suing the County.
According to The Hollywood Reporter, Candy Lab AR, developer of the augmented reality poker game Texas Rope ‘Em, filed a lawsuit against Milwaukee County on Friday, challenging the constitutionality of the ordinance. (Candy Lab AR describes Texas Rope ‘Em as a game where players build their hands by “visiting certain game stops that have been programmed into the application.”) Here’s the introduction of the lawsuit:
This is a civil action seeking to protect and vindicate fundamental constitutional rights, namely the right to free speech. It is a challenge, under the First Amendment and 42 U.S.C. § 1983, to Section 47.03 of the Milwaukee County Code of General Ordinances (the “Ordinance”) recently amended by Resolution 16-637, which was passed by the Board and signed by Chris Abele, Milwaukee County Executive. The Ordinance requires companies producing “virtual games” and “location-based augmented reality games” to obtain a permit before “introducing” such games “into” Milwaukee County Parks.
This restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. The Ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague such that Candy Lab AR does not have notice as to what speech must be approved by permit and which it can express without seeking a permit.
Candy Lab AR seeks a declaration that Defendants violated its clearly established constitutional rights as set forth in this Complaint; a declaration that the Ordinance restricts Candy Lab AR’s speech in violation of the U.S. Constitution and 42 U.S.C. § 1983 as set forth in this Complaint; and a preliminary and permanent injunction enjoining the enforcement of the Ordinance as set forth in this Complaint. Further, Candy Lab AR seeks an award of reasonable costs of litigation, including attorney’s fees and expenses, pursuant to 42 U.S.C. § 1988(b) and any other applicable law.
The lawsuit takes aim at the ordinance’s hazy permitting process, and challenges the very idea of virtual games existing is physical space:
The Ordinance states that “Permits shall be required before any company may introduce a location-based augmented reality game into the Parks….”
Taken literally, this language is incoherent and nonsensical. No company “introduces” a piece of software “into” any physical location. The fact that a particular software application is “location-based” merely means that it will perform certain functions, or display certain content, based on where the device running the software is located at any given time. The developer’s role in distributing that software, however, ends with making it available for download in a software app store. Physical entry into a location only occurs when an individual carries his or her mobile device with them into the location.
“As with all pending litigation against the County, we are unable to comment other than to say we take it very seriously,” Melissa Baldauff, a spokeswoman for Milwaukee County Executive Chris Abele, tells Milwaukee Record.
A Poke-controversy was touched off last summer when it was revealed that Milwaukee County Parks had written a letter to the developer of Pokemon Go, Niantic, Inc., asking for the removal of PokeStops from Lake Park. The park had become a hugely popular destination for Pokemon Go players, much to the chagrin—and sometimes outright hostility—of neighbors. Trash, parking issues, lack of bathrooms, trampled landscapes, and neighbors threatened with violence were just a few of the problems that arose. The controversy came to a head in September in a boring, livid, and gloriously absurd meeting that found both sides of the issue at wit’s end. In October, a handful of Lake Park PokeStops were indeed removed.
Read the entire lawsuit here.